Citation Nr: 0610695
Decision Date: 04/14/06 Archive Date: 04/26/06
DOCKET NO. 03-32 215 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for bilateral tinnitus.
3. Entitlement to a rating higher than 30 percent for the
residuals of gunshot wound to the left shoulder, involving
Muscle Group III.
4. Entitlement to a separate rating for the residuals of
gunshot wound to the left shoulder, involving Muscle Group
IV.
REPRESENTATION
Veteran represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
L.J. Bakke, Counsel
INTRODUCTION
The veteran served on active duty from August 1967 to August
1969. Service personnel records reflect that the veteran was
awarded the Purple Heart Medal.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a January 2003 rating decision of a Department
of Veterans Affairs (VA) Regional Office (RO).
FINDINGS OF FACT
1. The currently diagnosed bilateral hearing loss is not
shown by the medical evidence to be the result of service.
2. The currently diagnosed bilateral tinnitus is not shown by
the medical evidence to be the result of service.
3. The residuals of gunshot wound to the left shoulder,
involving Muscle Group III, result in severe impairment.
4. The residuals of gunshot wound to the left shoulder,
involving Muscle Group IV, result in severe impairment.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in service.
38 U.S.C.A. §§ 1110, 1154, 5107(b) (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2005).
2. Bilateral tinnitus was not incurred in service.
38 U.S.C.A. §§ 1110, 1154, 5107(b) (West 2002 & Supp. 2005);
38 C.F.R. § 3.303 (2005).
3. The current 30 percent rating for residuals of a gunshot
wound to the left shoulder, involving Muscle Group III, is
the maximum schedular rating under Diagnostic Code 5303.
38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.56, 4.73,
Diagnostic Code 5303.
4. The criteria for a separate 20 percent rating for
residuals of a gunshot wound to the left shoulder, involving
Muscle Group IV, under Diagnostic Code 5304 have been met,
subject to the limits of 38 C.F.R. § 4.55(d). 38 U.S.C.A.
§§ 1155, 5107(b); 38 C.F.R. §§ 4.55, 4.56, 4.73, Diagnostic
Code 5304.
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in
part, at 38 C.F.R § 3.159, amended VA's duties to notify and
to assist a claimant in developing information and evidence
necessary to substantiate a claim.
Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of
the information and evidence not of record that is necessary
to substantiate the claim, which information and evidence
that VA will seek to provide, and which information and
evidence the claimant is expected to provide. Under 38
C.F.R. § 3.159, VA must request that the claimant provide any
evidence in the claimant's possession that pertains to a
claim.
During the pendency of this appeal, in March 2006, the Court
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506 (U.S.
Vet. App. Mar. 3, 2006), holding that the VCAA notice
requirements must also include a provision pertaining to the
rating of the disability and the effective date of the award.
Duty to Notify
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) held, in
part, that VCAA notice, as required by 38 U.S.C. § 5103(a),
must be provided to a claimant before the initial unfavorable
adjudication by the RO.
The RO provided the veteran with pre-adjudication VCAA notice
by letter, dated in August 2002. In August 2005, the RO
provided additional VCAA notice on the claim for increase,
namely, the type of evidence needed to substantiate the
claim. The notices included the type of evidence needed to
substantiate the claims for service connection, namely,
evidence of current disability and of a causal relationship
between that disability and injury, disease or event
inservice; and for increase, namely, evidence that the
disability was worse. The veteran was informed that VA would
obtain service medical records, VA records, and records of
other Federal agencies, and that he could submit private
medical records or authorize VA to obtain the records on his
behalf. In the statement of the case, dated in September
2003, the RO cited 38 C.F.R. § 3.159 with the provision that
the claimant provide any evidence in his possession that
pertained to a claim
Although the timing of the notice of the provisions of 38
C.F.R. § 3.159 and of the type of evidence needed to
substantiate the claim for increase did not comply with the
requirement that the notice must precede the adjudication,
the action of the RO described above cured the procedural
defect because the veteran had the opportunity to submit
additional argument, which he did, and evidence, and to
address the issues at a hearing, which he declined. For
these reasons, the timing of the VCAA notice was harmless
error.
As for content of the VCAA notice, the documents
substantially comply with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence), of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); and, of Pelegrini, supra
(38 C.F.R. § 3.159 notice).
Although the VCAA notices did not include any provision for
rating the disabilities, should the claims of service
connection have been granted, or an effective date should any
benefit be granted, as the claims of service connection are
denied, the matter of rating hearing loss and tinnitus is
moot. As for claim for increase, the effective date to be
assigned in this case has yet to be determined by the RO, who
will implement the Board's decision, and the effective-date
question is an appealable issue should the veteran disagree
with the effect date assigned. Therefore, any notice
deficiency with respect to the effective-date question is
harmless error.
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate a claim. Under the duty to assist, 38 C.F.R. §
3.159(c)(4), VA will provide a medical examination if an
examination is necessary to decide the claim. The RO
accorded the veteran VA examinations in June 2003 with August
2003 addendum, and in March 2005. As the veteran has not
identified additional evidence which has yet to be obtained,
and as there is otherwise no additional evidence to obtain,
the Board concludes that the duty-to-assist provisions of the
VCAA have been complied with.
For above reasons, no further development is needed to ensure
VCAA compliance.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection
Service connection may be established for disability
resulting from personal injury or disease incurred in or
aggravated by service. 38 U.S.C.A. § 1110. Regulations also
provide that service connection may be established where all
the evidence of record, including that pertinent to service,
demonstrates that the veteran's current disability was
incurred in service. 38 C.F.R. § 3.303(d).
Where there is a chronic disease shown as such in service or
within the presumptive period under § 3.307 so as to permit a
finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however, remote,
are service connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b). This rule does
not mean that any manifestations in service will permit
service connection. To show chronic disease in service there
is required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time as distinguished from merely
isolated findings or a diagnosis including the word
"chronic". When the disease entity is established, there
is no requirement of evidentiary showing of continuity. When
the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim. 38 C.F.R. § 3.303(b).
Continuous service for 90 days or more during a period of
war, or peace time service after December 31, 1946, and post-
service development of a presumptive disease such as hearing
loss to a degree of 10 percent within one year from the date
of termination of such service, establishes a rebuttable
presumption that the disease was incurred in service.
38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent.
Analysis
The veteran contends that he suffers from bilateral hearing
loss and tinnitus that are the result of acoustic trauma
sustained in combat conditions during his active service.
In the present case, the medical evidence establishes that
the veteran has been diagnosed with bilateral hearing loss
and bilateral tinnitus. However, the medical evidence does
not show that the disabilities where diagnosed within the
year following the veteran's discharge from service, or that
the disabilities are otherwise the result of the veteran's
service.
The veteran's hearing was tested twice before his induction
into service. Audiological tests conducted in February 1967
reveal normal hearing within the meaning of 38 C.F.R.
§ 3.385. Auditory thresholds at frequencies 500 through 4000
Herz were measured at 5 to 10 decibels. In August 1967, the
auditory threshold at 2000 Herz in the left ear measured 45
decibels, which met the criteria for hearing loss at
38 C.F.R. § 3.385, but no hearing defect or diagnosis was
noted, and the veteran was found fit for service. At
discharge from service, the veteran's auditory thresholds
measured 5 at all frequencies measured, again indicating
normal hearing within the meaning of 38 C.F.R. § 3.385. The
service medical records contain no complaint or finding of
either hearing loss or tinnitus.
The Board is cognizant of the veteran's status as a combat
veteran and exposure to acoustic trauma is consistent with
the circumstances and conditions of such service. 38 U.S.C.A.
§ 1154. However, the analysis does not end here. The
veteran must show that he has hearing impairment that is the
result of that in-service acoustic trauma.
After service, on VA examination in May 1976, hearing loss
was not noted.
The veteran filed his claim of service connection for hearing
loss and tinnitus in July 2002. The first medical evidence
of hearing loss and tinnitus is the June/August 2003 VA
examination report, more than 30 years after the veteran's
discharge from service and well beyond the one-year
presumptive period. While the VA report documented the
diagnoses of bilateral sensorineural hearing loss and
bilateral tinnitus, the examiner did not etiologically link
the disabilities to the veteran's service.
After a review of the service medical records, the examiner
expressed the opinion that since the service medical records
were negative for hearing loss and tinnitus, and since the
veteran had normal auditory thresholds at separation from
service, it would appear most likely that current hearing
loss and tinnitus occurred subsequent to separation from
service, and it was less likely than not that the veteran's
hearing loss and tinnitus were related to military service.
As for the probative weight of the veteran's statements,
where as here, the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
of nexus or relationship between the post-service diagnosis
of hearing loss and tinnitus and service is required to
support the claim. The veteran as a layperson is not
competent to offer a medical opinion and consequently his
statements to the extent that he associates the post-service
diagnoses to service does not constitute medical evidence.
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Therefore, the
Board must reject the veteran's statements as favorable
evidence linking post-service hearing loss and tinnitus to
service. Absent medical evidence of a causal link between
the currently diagnosed hearing loss and tinnitus and the
veteran's service, the Board finds the claims for service
connection must be denied.
As the Board may consider only independent medical evidence
to support its findings and as the preponderance of that
medical evidence is against the claim, entitlement to service
connection for hearing loss and tinnitus is not established.
38 U.S.C.A. § 5107(b).
Claim for Increase
Service-connected disabilities are rated in accordance with
the VA Rating Schedule. The ratings are based on the average
impairment of earning capacity. Separate diagnostic codes
identify the various disabilities. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4.
In cases where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
Analysis
The veteran argues that the residuals of the left shoulder
wound have worsened in severity. He reports severe pain and
limitation of left shoulder joint motion.
The service medical records disclose that in April 1968 in an
ambush the veteran sustained a gunshot would to the left
shoulder and the bullet was lodged in the head of the
humerus.
In a June 1976 rating decision, the RO granted service
connection for the residuals of the gunshot wound of the left
shoulder and assigned a 10 percent rating. In a March 1989
rating decision, the RO assigned a single rating of 20
percent to include Muscle Groups III and IV, effective from
February 1976, under Diagnostic Codes 5303-5304. The 20
percent remained in effect and unchanged since then.
The veteran's current claim for increase was received at the
RO in July 2002.
On VA examination in June 2003, there was tenderness over the
infraspinatus muscle and pain at passive range of motion.
Active range of motion was measured at 90 degrees forward
flexion, 90 degrees abduction, 45 degrees external rotation,
and 30 degrees extension with internal rotation to L5. Motor
strength measured 4 of 5 in the shoulder. Cross arm and
impingements tests were found to be positive. X-rays
revealed a retained bullet in the proximal left humerus just
below the greater tuberosity, absent acute fracture and
abnormal calcification. Bones, joint spaces, and soft
tissues were unremarkable, but a minimal acromioclavicular
joint hypertrophic spur was noted. The diagnosis was
residuals of gunshot wound to the left shoulder with retained
projectile productive of significant weakness, especially on
repetitive work, and degenerative joint disease of the
acromial clavicular joint.
In a September 2003 rating decision, the RO assigned a
separate, 10 percent for the gunshot wound shoulder scar and
a separate, 10 percent rating for neurological impairment
resulting from the left shoulder gunshot wound.
On VA examination in March 2005, ranges of motion of the left
shoulder were 85 degrees abduction, 30 degrees extension, 40
degrees external rotation, and 35 degrees posterior flexion.
Strength was measured at 2 of 5 in the left as compared to 7
of 5 in the right. The examiner noted the veteran is right
hand dominant but that his occupation required left hand
manipulation of fork lift controls. The examiner's
impressions were bullet indwelling the upper humerus with
major problems with pain, weakness, fatigue, incoordination
of Muscle Groups III and IV. There were also occasional
flare-ups, which was productive of painful motion in all
aspects of left shoulder.
The examiner noted high grade impingement in Muscle Groups
III and IV, which was directly related to the initial injury
and late sequelae. A CT scan showed a bullet fragment within
the left humeral head and neck region without acute osseous
abnormality. The examiner further noted that the left
shoulder disability definitely impacted the veteran's usual
occupation and activities of daily living-the joint was
exceedingly painful and exceedingly limited and additional
limitation was present on repetitive use and during flare-
ups. But no instability was found and no assistive device
was yet needed.
Private medical records show complaints of and treatment for
the left shoulder disability.
In a March 2005 rating decision, the RO assigned a single
rating of 30 percent under Diagnostic Codes 5303-5304,
effective from the date of receipt of the claim for increase.
Under 38 C.F.R. § 4.56(b) a through-and-through injury with
muscle damage shall be evaluated as no less than a moderate
injury for each group of muscles damaged. Jones v. Principi,
18 Vet.App. 248 (2004).
The service medical records show that the bullet wound
penetrated to the humerus, which is strong support for
finding that the veteran suffered a through-and-through
muscle wound or a through-and-through wound involving a
muscle group, which pursuant to § 4.56(b) must be rated at
least as a moderate injury for each muscle group damaged.
Beyrle v. Brown, 9 Vet.App. 377, 386 (1996).
In this case, Muscle Groups III and IV are involved. Muscle
Group IV are the deeper muscles underlying the area covered
by Muscle Group III.
Under Diagnostic Code (DC) 5303, a 30 percent rating is the
maximum schedular rating for a severe muscle injury of Muscle
Group III of the minor extremity. Therefore under DC 5303, a
schedular rating higher than 30 percent for cannot be
assigned.
As the veteran suffered a through-and-through muscle wound to
two muscle groups, a separate rating for Muscle Group IV must
be considered. Under Diagnostic Code 5304, the maximum
schedular rating for a severe muscle injury of the minor
extremity is 20 percent. Therefore a separate 20 percent
rating for Muscle Group IV is assignable.
While a separate 20 percent rating is assignable for Muscle
Group IV, the combined rating for Muscle Groups III and IV
acting upon the left shoulder joint, which is not ankylosed,
must be lower than the rating for unfavorable ankylosis of
the shoulder. 38 C.F.R. § 4.55(d). The rating for
unfavorable ankylosis of the minor extremity is 40 percent
under DC 5200. The next lower rating under DC 5200 is a 30
percent rating.
By operation of law, the combined rating for separate ratings
for Muscle Groups III and IV cannot exceed 30 percent.
Although the Board finds the separate, compensable ratings
are assignable for Muscle Groups III and IV, the combined
rating must be lower than the rating for unfavorable
ankylosis of the shoulder or in this case 30 percent.
Although the Board is precluded by regulation from assigning
an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the
first instance, the Board is not precluded from considering
whether the case should be referred to the Director of VA's
Compensation and Pension Service. In this case, disability
picture is not exceptional or unusual as to render
impractical the application of the regular schedular
criteria. For this reason, the Board finds no basis to refer
this case for consideration of an extraschedular rating.
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for bilateral tinnitus is denied.
A rating higher than 30 percent for residuals of a gunshot
wound of the left shoulder, involving Muscle Group III, is
denied.
A 20 percent rating for residuals of a gunshot wound of the
left shoulder, involving Muscle Group IV, is granted, subject
to the combined rating for muscle groups under 38 C.F.R.
§ 4.55(d) and the laws and regulations governing the award of
monetary benefits.
______________________________________________
GEORGE E. GUIDO JR.
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs